Basic Principles of Civil Law in China

David M Jones

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781315491479
• Edition: 1
• Topic: Ciencias sociales
• Subtopic: Estudios regionales

This is an abridged translation of the principal Chinese textbook on civil law, which was published as part of the restructuring of China's legal system following the Third Plenum of the Chinese Communist Party in late 1978. Because the closest thing China has to a civil code - the General Provisions of Civil Law enacted in 1986 - is very incomplete, this treatise is an authoritative source on the subject. "Basic Principles of Civil Law in China" translates those portions of the Chinese text that are likely to be most useful for foreigners dealing with China, such as material on contracts, torts, joint-ventures, negotiable instruments and technology transfer. It also contains general material on such matters as agency and partnership, the general principles of juristic persons, and statutes of limitations.

I	GENERAL DISCUSSION OF CIVIL LAW

1	Introduction

I

Like other parts of the law, civil law is a super-structure constructed on a certain economic base. Moreover, it exists to serve its economic base. Engels wrote, “Civil law norms are only the expression of the conditions of society’s economic life in the form of law.” Even more clearly, he said that civil law was that which “takes the direct reflection of economic relations as the principle of law” because civil law has an especially close relationship with an economic foundation that depends on and is constructed by a certain society. Consequently, if we look at the matter historically and from the point of view of the present circumstances of every country of the present day, civil law occupies an important position in the legal system and our country is no exception.

What are the objects that are adjusted by civil law? The objects adjusted by civil law are property relations and personal relations that are connected with property within a certain range. But how does one determine this “certain range”? At present there is no single point of view. Civil law is a general law. In every country the social relations adjusted by civil law are jumbled. Apart from economic relations, there are also a great number of personal relations. If the civil code to be promulgated by our country contains some legal rules that are very close to [those in other codes] or rules that do not fit within other codes, this is very common. However, since our country’s civil law is an independent body [of law], its heart or leading aspect must be determined by the social relations it adjusts. We believe that the object of our country’s civil law is our country’s socialist commodity relations. Or, in other words, the heart or leading aspect of the social relations adjusted by our country’s civil law is our country’s socialist commodity relations.

In essence, civil law serves a certain society’s commodity relationships. The phrase “civil law” comes from the ancient Roman “law of the people of the city [citizens].” At that time, the law of the people of the city was seen as collecting all rules necessary for defending the social life of the city-state. However, in the great jumble of Roman law, the essence lay in the so-called “private law” that adjusts every sort of dissimilar relationship among private persons. According to the earliest scholar of Roman law, Gaius, Roman private law was divided into the law of persons and things. This is the earliest scientific classification of Roman law. When the Emperor Justinian edited the legal treatises and formed the theoretical structure of the Corpus Juris, he took procedure out of property [thing] law and formed a new part. The Corpus Juris, promulgated in the sixth century A.D., divided Roman law into the three parts of the law of persons, things, and actions. This division had significance for the separation of public and private law. Roman private law earliest and most clearly recognized individual property rights and established the concept of property rights; it earliest and most clearly recognized personal rights, that is, the legal concept of the subject of rights; it earliest and most completely provided for the right freely to execute contracts. These three rights are precisely the legal reflection of the needs of commodity relations. As Engels, in writing about the nature of Roman law, stated, “Roman law is simply the perfect legislation for simple commodity production, that is to say, pre-capitalist commodity production.”

The French Civil Code of 1804 absorbed the spirit of Roman law. It was constructed according to the system of the Corpus Juris. It is divided into three parts: (1) persons, including persons acting as subjects of rights, and also including persons who are members of the marriage household. (2) Property-ownership–rights. These include movable and immovable property (immovable property includes land). (3) Every method of obtaining property, including obligations, contracts, succession. The reason this code has been praised is that it was the earliest and most complete to provide clear and penetrating rules for the forms of capitalist production. As Engels pointed out, in talking about the nature of the French Code: “They took the first commodity producers’ law of worldwide significance, i.e., Roman law with its incomparably clear rules regarding the legal relations of simple commodity owners (such as purchasers or sellers, obligees and obligors, contracts, obligations, etc., etc.) and produced these model bourgeois codes like the French civil code.”

The civil code of Soviet Russia which was promulgated in 1922, and went into effect in 1923, was published by the Soviet authorities as the first civil code which took public ownership of the means of production as its basis. This civil code appeared with the background of what Lenin called “the economy governed in accordance with commercial principles.” Moreover, it was drafted under his leadership. After Lenin died, the economic theory that occupied the dominant position in the Soviet Union would not recognize the existence of commodity relations in the production and circulation of the means of production. But looking at the content of the code, and the principles and methods of regulation specified by the said code, it actually takes the regulating of commodity relations in a socialist society as its central responsibility.

It is undeniable that the economic bases of civil law are different at different times. The class structures are exceptionally dissimilar. Their content and systems are of many sorts and kinds. But they all, in the end, maintain one thing in common—that is, that the basic content of the social relations regulated by civil law is composed of certain commodity relationships. Mankind has already gone through the two stages of the natural economy and the commodity economy. Civil law is also adapted to the development of the commodity economy and has gone through a very long stage of evolution. Beginning with the class society, in different historical periods, civil law norms were always the essential condition for the stabilization and development of commodity relations. In Roman times, the nature of the social economy was the natural economy. Consequently, Roman private law only adjusted the simple commodity exchange relations required for the consumption of the producers. Its application was limited by the natural economy. In the time of the Napoleonic Code, the highly developed commodity economy required a civil law that confirmed the position of the free and equal producers of commodities and that was freed from feudal, regional, and aristocratic ties. It advocated individuals, in a state of freedom and equality, exercising their own will to adjust their own mutual relations, and regularize the ordinary production and consumption relations between individuals and all the relations dependent on them. It ensured that labor was a commodity and that workers would form an object for capitalists to possess and exploit (and, moreover, that [capitalists would] take possession of the surplus value produced by the workers). It then used the civil law process to impel the development to a high level of the capitalist commodity economy.

The difference between socialist civil law and capitalist civil law does not lie principally in its reflection of ordinary commodity relations and the law of value in civil law techniques, [based on] equality and equal value. Rather, it lies in the special characteristics of the socialist system of public ownership which is realized in the civil law norms themselves and the new forms of commodity relations that reflect socialism. Socialist commodity relations are commodity relations that are based on public ownership and eliminate class conflict and class exploitation. They are commodity exchange relations that are carried on on the principle of exchange of truly equal labor. They are commodity relations that are under the leadership of the state plan and have as their aim the fulfillment of the people’s needs. The brand new and special characteristics of our country’s civil law rest on this basis.

In the course of historical development, civil law not only had to follow the specially designated commodity relations that were determined by the forms of production of the time, but, owing to the fact that commodity relations grew more complicated every day, in the system of legislation there was a gradual process of [development from a situation in which] the law was united to one in which all the law was divided. In this stage, the basic part of the social relations adjusted by civil law (commodity relations) also gradually appeared clearly from the midst of the confused mass of legal norms that reflected the many types of social relations. For example, in Roman law, there was no division between civil and criminal matters. Substantive law and procedural law were not separated. This [condition] no longer exists in the French Civil Code. But the French Civil Code, like all capitalist civil codes, calls labor relations, land relations, marriage and family relations, and commodity relations, private legal relations, and places them together within the area to which the civil law applies. The Soviet Russian Civil Code of 1923, according to Lenin’s teaching, discarded the bourgeois theory regarding the “private law,” “public law” distinction. It followed the principle of placing different types of social relations in different categories for adjustment. As to social labor relationships, or land relationships, and marriage and family relationships, separate bodies of law were established to adjust these matters. They were not again put in the category of objects to be adjusted by civil law. This sort of division of the areas of law was consistent with historical materialism, and was a great step forward in the legal history of mankind.

It may be seen from the above discussion that the three [categories of] the rights of the independent personality and property ownership, and the necessary corollary of these two rights—freedom of contract—which appear at different stages in different societies, are the necessary requirements for commodity economic relations to be expressed in legislation. Although the content of these rights was early reflected in Roman law, they were lost in the mist of the jumble of rules. [After] several thousand years passed with purification in the crucible of many kinds of social history, the leading position of commodity relations and civil law became ever clearer, not only in theory, but also in legislative practice. This sort of phenomenon shows us that all societies with commodity production and circulation require the promulgation of legislation that harmonizes with the essential special nature of the commodity relations particular to the said societies. This is civil law.

II

A developed commodity economy is a stage of human development that cannot be avoided, and the development to a high degree of the new style of socialist commodity relations is the way to realize our country’s socialist modernization. If it is desired to have the commodity economy develop along normal lines, then it is necessary to construct the normal order of the commodity economy by means of civil law norms. Making use of the methods of civil law by giving full play to the active use of the law of value, and thus satisfying the development of the commodity economy—this is the urgent requirement of our country’s reform of the economic system.

Beginning with the Third Plenum of the Thirteenth Party Congress, the Party, based on the requirement that production relations must harmonize with the level of production development, established the policy of opening to the outside, and, internally, activating the economy. At the same time, it put forward the task of carrying out the reform of our country’s economic system. In recent years, the reform of the economic system has strongly impelled the development of a socialist commodity economy. The reform of agriculture, on the basis of stabilizing and perfecting the system of production responsibility, put forward many types of management, and agriculture proceeded from self-sufficiency and half self-sufficiency to a commodity economy. Urban reform also had a successful beginning. In the midst of simplification and relaxation of government control and division of government enterprises, state managed enterprises greatly expanded their self-government. Many state managed small-scale enterprises began to use collective contracts or individual contracts or [contracts of] hire, or the payment of taxes to the state, using the methods of collective enterprises. The second step of carrying out of the change from the [the payment of] profits [into the payment of] taxes progressively strengthened the position of the state enterprises as commodity producers. Many levels of secondary economic structure development began to invigorate our country’s economy. The reform of the system of circulation of our country’s markets began to flourish. The opening of the special economic zones and the coastal cities promoted the development of the forces of civil law activity. In sum, the speeded development of the socialist commodity economy is an important change brought to our country’s economy by the reform of the economic system.

The Third Plenum of the Twelfth Congress, in adapting to the necessary requirements of historical development, and the urgent desires of the people, put forth a strategic plan to speed up the reform of the entire economic system on the basis of the cities as the strong point. It put forth to the entire Party and the whole people the tremendous task of progressively opening up reform in every sector. The report of the Third Plenum of the Twelfth Congress stated, “A socialist planned economy must, on the basis of the Party, and using the laws of value, be a planned commodity economy that is based on a system of public ownership.” Moreover, it put forward the task of developing the socialist commodity economy. Closely connected with this, the speedy improvement of a legal system for the activity of a commodity economy was an essential requirement for the development of a commodity economy in the reform of the economic system. Consequently, along with the carrying out of reform for the economic system in our country, it is necessary that the civil law develop and improve along with it. At the same time, civil law constitutes the essential law for adjusting economic relations. Its position in economic activity became more prominent every day.

Our country’s civil law has the adjustment of commodity relations as its principal responsibility. Thus, the range of commodity relations determines the range of utilization of civil law. Owing to the fact that our recognition of how essential it is to the objective existence of a socialist commodity economy was insufficient, even to the point of regarding several measures for the development of socialist economy as constituting capitalism, the result was that, not only was there no solution of the problem of excessive collectivization of the economic control system established at the time of the formation of the country, but instead, a very rigid system of control was gradually formed, unsuitable for the development of the economic power of society. Under this kind of system, economic policy making was highly concentrated in the central [government]. Enterprises were subordinate objects of administrative organs. In the field of circulation, allocation and distribution in kind were the most important [methods used]. The forms of ownership of the means of production were ever more unified. This caused the commodity economy not ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Editor’s Introduction
• PART I: GENERAL DISCUSSION OF CIVIL LAW
• PART II: PROPERTY
• PART III: OBLIGATIONS